CHANDESHWAR SAW versus BRIJ BHUSHAN PRASAD & ORS.

Citation: [2020] 1 S.C.R. 523 · Decided: 28-01-2020 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Disposed off

cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
523
CHANDESHWAR SAW
v.
BRIJ BHUSHAN PRASAD & ORS.
(Civil Appeal No. 780 of 2020)
JANUARY 28, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Election Laws:
Panchayat Election – Complaint against returned candidate,
by the election petitioner – Alleging that despite objection, number
of valid votes cast in his favour were being rejected and invalid
votes in favour of returned candidate were accepted – The Tribunal
finding the irregularities in counting of votes declared his election
as null and void and directed recounting of votes – In Writ Petition
Single Judge of High court held that before recounting of votes,
election of returned candidate should not have been set aside and
relegated the parties to Tribunal for passing appropriate order after
result of recounting – After recounting process, results were kept in
sealed envelope – LPA filed against order of Single Judge –
Tribunal’s direction to place the result in sealed envelope before
District Election Officer-cum-District Magistrate for declaration of
the result – Challenged by returned candidate by way of a writ
petition – The LPA as well as the writ petition of returned candidate
was decided against the election petitioner setting aside the direction
of recounting of votes – Appeal to Supreme Court – Held : Division
Bench reversed the well considered decision of Election Tribunal
and Single Judge of High Court, without analysing the pleadings
and the evidence – A declaration u/s. 140 of Bihar Panchayat Raj
Act, 2006 is issued that the election of the returned candidate is set
aside being invalid and election petitioner is declared as having
been duly elected – Bihar Panchayat Raj Act, 2006 – s. 140.
Disposing of the appeal, the Court
HELD : 1.1 The Division Bench of High Court reversed
the well-considered decision of the Election Tribunal, which has
justly been upheld by the Single Judge of High Court, without
analysing the pleadings and the evidence adduced by the appellant/
   [2020] 1 S.C.R. 523
523
A
B
C
D
E
F
G
H
524
SUPREME COURT REPORTS
[2020] 1 S.C.R.
election petitioner during the trial of the election case.  The
impugned judgment merely adverts to the interim orders passed
during the pendency of the writ petition filed by respondent No.
1 and the LPA and goes on to observe that for the (prima facie)
opinion recorded therein, the matter in issue deserves to be
answered against the appellant/election petitioner and in favour
of respondent No. 1. [Para 8] [533-A-C]
1.2 Without reversing the finding of facts so recorded by
the Election Tribunal, merely by referring to decisions of this
Court, the Division Bench could not have disturbed the order of
recount as directed by the Election Tribunal in the peculiar facts
of the present case.  Inasmuch as, the appellant/election petitioner
had not only pleaded about the serious irregularities committed
by the officials during the counting of valid votes cast in his favour
and invalid votes taken into account in favour of respondent No.
1, but had also examined witnesses to substantiate that fact, as
noted by the Election Tribunal and the Single Judge of the High
Court. [Para 8] [536-F-H]
Mahender Pratap v. Krishan Pal & Ors. (2003) 1 SCC
390 : [2002] 4 Suppl. SCR 339 – distinguished.
Bhabhi v. Sheo Govind & Ors. (1976) 1 SCC 687 ;
[1975] Suppl. SCR 202 – referred to.
1.3 Since the appellant had substantiated the allegation made
in the election petition and the Election Tribunal being convinced
about the said claim proceeded to issue order of recount.  No
fault can be found with that approach of the Election Tribunal nor
it is possible to suggest that the Election Tribunal or the Single
Judge was not conscious about the necessity to substantiate the
allegation about the serious irregularities committed by the
officials during the counting. The Court or Tribunal can direct
recount of votes even if the party had not applied in writing for
recounting of votes to the Returning Officer.  There is no
provision in the Bihar Panchayat Raj Act, 2006 or in the Rules
prohibiting the Court or the Tribunal to direct recounting of votes.
[Paras 9 & 10] [538-A-B, E]
A
B
C
D
E
F
G
H
525
Sohan Lal v. Babu Gandhi & Ors. (2003) 1 SCC 108 :
[2002] 4 Suppl. SCR 333 – relied on.
Ram Rati (Smt) v. Saroj Devi & Ors. (1997) 6 SCC 66 :
[1997] 3 SCR 1050 – stood overruled.
1.4 After the recount, the appellant/election petitioner has
secured 95 excess valid votes, more than the valid votes secured
by respondent No. 1.  T

Excerpt shown. Read the full judgment & AI analysis in Lexace.